Excerpt:civil procedure code (1908), order xxxiv, rules 4 and 5 - mortgage--preliminary decree in favour to puisne mortgagee allowing redemption of prior mortgage--bight of puisne mortgagee on redemption to a decree absolute for sale of the property comprised in both mortgages. - - in the result the mortgagors failed to redeem and the plaintiffs did pay off tika ram. it is contended that they not only failed to do this, but they acquiesced in a decree which contained a specification of the mortgaged property, that this specification was limited in the manner already stated and that it cannot be added to or modified in any way in the decree absolute. the meaning clearly is that the mortgaged property which the plaintiffs are under the particular circumstances of the case entitled to bring to..........that covered by the mortgage in favour of the plaintiffs only, and did not include the additional property mortgaged to tika ram. in the result the mortgagors failed to redeem and the plaintiffs did pay off tika ram. they then came into court asking for a final decree under the provisions of order xxxiv, rule 5, of the code of civil procedure, and they naturally claimed that this final decree should be so drafted as to entitle them to bring to sale, not only the property originally covered by their mortgage, but the additional property included in the mortgages in favour of tika ram to whose rights they had been subrogated in consequence of the payment made by them subsequently to the passing of the preliminary decree. that this was a proper and valid claim has been practically concede.....

Judgment:

Piggott, J.

1. In the litigation out of which this second appeal arises there were three parties. The appellants now before this Court were subsequent mortgagees. There were certain defendants who were the original mortgagors, and there was one Tika Ram Avho held mortgages prior in date to those of the present appellants. There were separate suits instituted by Tika Ram and the present appellants, but we are concerned at present only with the suit in which these appellants were the plaintiffs. It was a contested matter between them and Tika Ram as to whether the mortgages in favour of the latter had or had not priority, but this point was decided in favour of Tika Ram. A preliminary decree was then drawn up under Order XXXIV, Rule 4, of the Code of Civil Procedure. The facts of the case were somewhat complicated, more particularly by the circumstance that the mortgages in favour of Tika Ram covered certain other property over and above that which was involved both in Tika Ram's mortgages and in the mortgages in favour of the appellants. The preliminary decree drawn up by the court of first instance was clumsily drafted. In substance, however, it contained the provisions prescribed by the Statute; the mortgagors were given an opportunity to pay off the plaintiffs, failing this the plaintiffs were given an opportunity of paying off Tika Ram, and in the event of plaintiffs doing so, they ?were to be allowed to bring the mortgaged property to sale. There was appended to the decree a specification of the property in suit, and of course the property involved in that particular suit was that covered by the mortgage in favour of the plaintiffs only, and did not include the additional property mortgaged to Tika Ram. In the result the mortgagors failed to redeem and the plaintiffs did pay off Tika Ram. They then came into Court asking for a final decree under the provisions of Order XXXIV, Rule 5, of the Code of Civil Procedure, and they naturally claimed that this final decree should be so drafted as to entitle them to bring to sale, not only the property originally covered by their mortgage, but the additional property included in the mortgages in favour of Tika Ram to whose rights they had been subrogated in consequence of the payment made by them subsequently to the passing of the preliminary decree. That this was a proper and valid claim has been practically concede in argument before us, and is beyond question. Nor has it been questioned in the order passed by either of the courts below. The attitude taken up by the learned Subordinate Judge, who tried the suit in the first instance, and by the learned District Judge in appeal, is that the plaintiffs are asking the court to draw up a final decree for sale in terms inconsistent with the terms of the preliminary decree, and that this cannot be done. In fact a sort of res judicata is being set up against the present appellants. The contention is that they ought to have obtained in the preliminary decree itself a clear and specific statement that, in the event of their pacing off Tika Ram, they would be entitled to bring to sale, not only the property covered by their mortgage, but the additional property already referred to. It is contended that they not only failed to do this, but they acquiesced in a decree which contained a specification of the mortgaged property, that this specification was limited in the manner already stated and that it cannot be added to or modified in any way in the decree absolute. Although these contentions have found favour in both the courts below, it seems to me that they have no real force. So far as the terms of Order XXXIV, Rule 5, are concerned these merely lay down that in a certain event the court shall pass a decree that ' the mortgaged property or a sufficient part thereof' be sold. The meaning clearly is that the mortgaged property which the plaintiffs are under the particular circumstances of the case entitled to bring to sale shall be ordered to be sold. Neither Rule 4 nor Rule 5 of Order XXXIV says anything about the specification of the mortgaged property. It is no doubt right and proper that the mortgage decree should contain such specification, but the question before us now is whether the court was debarred from making the correct specification in its final decree under Order XXXIV, Rule 5, by reason of anything it had done in the decree which it passed under Order XXXIV, Rule 4. The court which deals with an application for a final decree is still the same court of original jurisdiction to which the plaint in the suit was presented, and it is still seized of the entire suit. It is its duty to frame a proper final decree, determining correctly once and for all the respective rights and liabilities of the parties. No doubt it would be a questionable exercise of discretion for a court to pass a final decree in terms clearly inconsistent with those of the preliminary decree; but so long as a court is seized of the entire case it seems to mo that it is entitled to clear up any ambiguity existing in the preliminary decree, and I would go further and say that it is entitled to frame its final decree so as to put right any patent error or omission which may be discoverable in the preliminary decree. In the present case the preliminary decree simply directed that on a certain event 'the mortgaged property' should be sold. The specification appended to the decree was simply that of the property mortgaged in the particular mortgage-deed on the basis of which the suit then before the court was brought. The question whether in the event of the then plaintiff's paying off Tika Ram, they would or would not become entitled to do something which they had no right to do under their own mortgage, namely, to sell the additional property mortgaged in favour of Tika Ram alone, had not been litigated before the court and I do not think it can fairly be said that it was determined by the form of the preliminary decree. I am of opinion that the court of first instance in the present case had jurisdiction, on the application made to it by the present appellants, to pass a final decree for sale in the terms desired by the appellants, and I am further of opinion that it ought to have done so. I would therefore allow this appeal with costs in all three courts, and direct that a decree for sale be drawn up in the terms desired by the plaintiffs authorizing them to bring to sale, not only the property originally mortgaged to them as specified in the preliminary decree, but also the additional property covered by the mortgage or mortgages in favour of Tika Ram alone, the specification of which can readily be ascertained from the papers on the record.

Walsh, J.

2. I entirely agree in the result and with the reasons given by my learned brother. Mr. Banerji on behalf of the respondents has argued this case with considerable skill, and the candour which might be expected from him. It is only because he has been able to present such formidable arguments, and because two courts have deliberately decided in favour of the view for which he has contended, that I think it desirable to say something in addition to my brother Piggoti's reason for allowing this appeal, upon some boarder and more important considerations which to my mind are raised. I. think it is high time that the attention of the lower courts was again drawn to the powers conferred on them by Sections 151, 152 and 153 of the Code of Civil Procedure. Those sections are just as applicable, to courts of first instance as to courts exercising appellate jurisdiction. Without enlarging upon their scope, it is sufficient to say that the powers conferred upon all courts exercising jurisdiction under the Code by those sections are wide, salutary and intended to enable the court, by curing breaches of technical rules, to give effect to the real rights of the parties and to prevent multiplicity of suits. I quite agree with what Mr. Banerji has said, that a mere attempt by a court to do what it is pleased to think 'justice between man and man' without regard to form at all, is just as likely to produce a miscarriage of justice as a slavish adherence to rules of procedure, and it is obviously difficult to define by a general proposition the dividing line between form and substance. But in this particular case there is no difficulty. It was admitted by Mr. Banerji that by law the appellants in this case were entitled to be subrogated, in respect of this surplus piece of property which is in dispute, to the rights of Tika Ram. Not only so, but it was also admitted by him with equal candour that unless in some way or other they could assert and obtain recognition of those admitted rights in the proceeding now bofore us, they would be confronted, in an independent suit brought in order to assert them, by a plea of res judicata. In other words, the effect of the order of the court below, which we are asked to affirm, was so to hold a party to the t's which he has crossed and the t's which he has dotted as to deprive him of his actual rights, admitted by the party opposed to him in the suit. It is in such cases that a court is not only entitled, but in my judgement, is bound to brush aside a mere technicality which stands in the way of justice, and to amend such mistakes, slips or omissions as may appear to prevent justice in order to give effect to the real and substantial rights of the parties. I will cite in support of the view I hold in this matter what has been laid down and recognized for years in the courts in England. The provisions of the English law are to be found in Order XXVIII of the rules of the Supreme Court, which correspond roughly with the first schedule of the Code of Civil Procedure, and in Sub-section 7 of Section 24 of the Judicature Act of 1873. The recognized principles upon which those provisions have been administered are contained in the sentences which I am going to quote from judgements of recognized authority in the English Court of Appeal at different epochs. 'My practice,' said Lord Bramwell, 'has always been to give leave to amend unless I have been satisfied, that the party applying was acting maid fide, or that by his blunder he bad done some injury to his opponent which could not be compensated for by costs or otherwise.' 'However negligent or careless may have been the first omission,' said Lord Esher, 'and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs.' 'An amendment ought to be allowed if thereby the real substantial question can be raised between the parties and multiplicity of legal proceedings avoided.' Again the Court of Appeal has said that under these provisions every Judge has full power of his own motion (that means to say when he sees that the party himself has not recognized the. amendment which is necessary, but that amendment is desirable) to make any amendment which he deems necessary for the purpose of determining the real question at issue between the parties. I do not myself profess to have followed very closely what possible alternative might have been suggested to the courts below for the purpose of correcting what was not so much an omission, as a want of foresight in the original drawing up of the provisional decree. It must be borne in mind that in drawing up such orders as this, the priority of the mortgages in question, the contingency to arise in the event of the first mortgage being paid off either by the mortgagor or the sub-sequent mortgagee, and a variety of other details, have to be considered and worked out, and judges, officials and counsel themselves would be more than human if mistakes were not made by oven the most highly qualified person entrusted to carry out the work. It is of the highest importance for the administration of justice that when the real rights of the parties are clear and definite, as in this case they are admitted to be, the Court of its own motion, without waiting for any application to be put in by a party, should adopt the necessary course to give effect to such admitted rights. It is for that reason that I have not referred to Section 114 of the Code of Civil Procedure, which gives the power of review. That is also a salutary provision, but having regard to the provisions relating to the procedure contained in Order XLVII, it imposes upon a party who is suffering from a mistake the task of taking some fresh independent steps of a technical nature which may lead to some unforeseen difficulty. I think myself that the powers under the sections already referred to are sufficient for a court, and that they should be kept in mind by the lower courts when such controversies arise as have arisen in this matter. It only needs to be added that in all such cases where it is clear to an appellate court that it was open to the first court or any lower court to have taken such steps by way of amendment, the appellate court ought to do what the lower court might have done.

3. The appeal is allowed with costs in all three courts and it is ordered that a decree for sale be drawn up in the terms desired by the plaintiffs authorizing them to bring to sale not only the property originally mortgaged to them as specified in the preliminary decree but also the additional property covered by the mortgage or mortgages in favour of Tika Ram alone, the specification of which can readily be ascertained from the papers on the record.